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Photographer Antoine Rose Takes Amazing Aerial Beach Photographs; But is he Allowed?

Antoine Rose
Antoine Rose "Up in the Air; Central Park Wollman Rink

The answer is yes, but here’s why. On July 4th, I had the opportunity to follow Belgian photographer, Antoine Rose, on a helicopter shoot for his latest project:  “Up in the Air on the 4th of July.” Antoine is a fantastic  photographer and extremely knowledgeable about his craft.  (I urge you to head over to his site www.antoinerose.com to view his work).  Antoine’s project involves aerial beach shots; like the one here.

Antoine Rose
Antoine Rose “Up in the Air” at the Emmanuel Fremin Gallery in NYC

After the shoot, we were discussing some of the legal questions regarding these kinds of shoot and street photography in general.  Most photographers don’t often consider the legal implications of their shoots because, as is human nature, we tend to make assumptions based on the actions of our peers.  We see people doing it all the time; we figure we can do the same thing.  Add to that, being a foreigner like Antoine, because he is not used to U.S. law at all.  Pile on the fact that most laws on the subject are different in every state to some degree and there is often no clear bright line to follow.  We hear stories constantly in the photography world about people being arrested for taking pictures in public spaces like subways.  (in general, it is OK, despite what police may say)

So, is it ok to take out a helicopter and shoot these beach scenes?  In this case, Antoine was perfectly within his rights.  But that doesn’t mean there aren’t issues that we should consider when taking photos in public areas.  So lets take a look.

First, let me say that the answers I am providing are general statements, and may not be true in particular states which may have different laws, so if you have concerns, ask an attorney in your state.  With that said, the first question is whether the property we are shooting on is public or private.  Private institutions can make their own rules.  SOHO House, here in Miami Beach, has a no camera policy so that their infamous guests are free from the paparazzi. That is the rule and it must be adhered to if you are on their premises.  SOHO house also has a private beach.  But the reality is that the beaches in Florida are public.  So SOHO house stakes out a claim for their beach area every morning but has no ownership of that section; they just commandeer it.  Therefore, the photography rule does not apply.  You can photograph people on the beach. In Antoine’s case, he is shooting the beach from a helicopter, so there is little question that he can shoot the beach.

Antoine Rose
Antoine Rose “Up in the Air; Central Park Wollman Rink

But what if Antoine wanted to shoot the SOHO House grounds from the helicopter. Well most states including Florida, prohibit photographing private places, like bedrooms and bathrooms.  It’s a peeping Tom law.  People have an expectation of privacy from being photographed in their bedroom from outside.  But is there an expectation of privacy on the SOHO house grounds?  Certainly not in the same way as a bedroom; it is a grey area so err on the side of caution because one overriding consideration is that even if you are correct in your understanding of the law, that does not mean someone won’t try to sue you anyway.  And if there is a little chink in the rule that some lawyer can hold onto, then you may find yourself in a court battle.

Another legal rule you should be aware of is the exception for newsworthy events. Generally, journalist are  allowed to photograph important news stories.  This makes sense.  We ant to ensure that the public has visual representations of news; although in many states you cannot photograph police while performing their duties, so be aware of your states rules on that.

Next topic: Antoine is taking shots of groups of people, but what if he was shooting individuals.  Do you need model releases?  The general rule is that you cannot take pictures of individuals and use the images to sell a product.  But used as art, the image is allowed and the person in the image would have a difficult time stopping you.  The idea is that we do not want to squash freedom of expression.  Imagine how art would be affected if photographers had to get permission from each person, every time they took a picture in public.  But at the same time, we don’t want to have someone taking a picture of us and then plastering it all over billboards or magazine ads.

Also, you should ensure that when adding descriptions to any photographs, the words are not slanderous; meaning words that with the image, would change the public perception of the subject person.  Let’s say you photographed someone sitting in a beach chair taking their prescription meds and you posted it to social media with the caption “Another pill junkie”, giving the impression that the person had a drug problem. For that, you would likely find yourself in court.  (This brings up another issue, which is too lengthy to deal with here but think about someone posting a picture of you on Facebook in a compromising position)

The last part of this scenario has to do with FAA regulations for the helicopter.  Can a helicopter hover over the beach taking pictures?  The answer, at least here in Florida, is that you can hover above a beach if the helicopter stays no less than 500 feet over the water and 1000 feet over land.  This is less an expectation of privacy issue and more a safety issue and a noise ordinance.  For our own safety, we never got near 500 feet.  But what about a more dense area like New York City?  The city has three major airports and an abundance of air traffic.  As a result, air traffic is supposed to stay above 2000 feet and generally, flying over Manhattan is off-limits, although in practice, these rules are not followed which has become the cause of much discussion lately (see Uptown Residents Demand Solution to Constant Helicopter Noise.)  Air traffic control has some latitude here, and could make you stay higher is safety warranted.  So again, find out what the rules are in your area.

So the conclusion to all this: you can generally take pictures of people in public places as along as it for art or news purposes.  If you can get amazing images like those of Antoine Rose, even better. But try not to take a picture of someone who got dirty from accidentally falling in a puddle, and then posting it with the caption “We need more help for the mentally disabled.”  That will get you into trouble.

 I want to thank all the people who have been sharing our articles with their friends on social media.  It has really helped increase our readership.  Please continue the practice, it is greatly appreciated. 

Antoine Rose Up in the Air, as well as my work, La Clave, Photographs of Cuba are both on display this month at the Emmanuel Fremin Gallery in New York City and at Art Hamptons International Fine Art Fair In Bridgehampton New York starting July 11th.  

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About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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